Appeal from the Circuit Court of Will County; the Hon. Wayne
P. Dyer, Judge, presiding.
JUSTICE WOMBACHER DELIVERED THE OPINION OF THE COURT:
Following a bench trial, Michael Kelly, the defendant, was convicted of the offenses of murder and felony murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(2), 9-1(a)(3)), and sentenced to a 22-year term of imprisonment.
Eight-year-old Lagresha Thomas provided the following account. On Saturday, November 19, 1983, Sharice, Lagresha and Nancy Thomas resided with the defendant and his wife, Wanda, who were adopting them. That day, after six-year-old Sharice showed the defendant her papers, the defendant asked Lagresha to hand him a stick, which he used to hit Sharice's hand. She cried and fell to the floor. The defendant hit her again and, when she tried to get away, Wanda held her. That night Sharice slept on the living room floor. The following day, Sharice limped, and her hand was swollen. Wanda spanked her and may have poured water on her. The defendant dumped her in water and grabbed her naked body by the neck and threw her onto the bed. That Monday, Sharice stayed home from school. Lagresha saw Sharice wiping off blood. When Lagresha came home from school, Sharice was watching television. Lagresha was not allowed to speak to Sharice, who was getting spankings Saturday through Tuesday. On Tuesday, November 22, 1983, Lagresha went to school, but Sharice was ill and stayed home. The defendant took Nancy to school. When Lagresha came home about 3 p.m., Sharice was home alone eating cereal. She requested water, spilled it and then fell on the floor. Lagresha was not to baby Sharice, so she kept washing the dishes. At approximately 4 p.m., Wanda came home, picked up Sharice by the wrist and took her into the bedroom. Sharice had been vomiting for several days. She spoke strangely and dragged her feet when she walked. Wanda dressed Sharice to go to the store, but Sharice stayed home while Wanda, Nancy and Lagresha went. When they returned, Lagresha noticed that Sharice's eye and mouth were open. Wanda called the ambulance, and the defendant and they both told Lagresha to say that Sharice fell into a hole. The defendant informed H. Diane White, the Department of Children and Family Services child abuse investigator, that on Tuesday, Sharice was vomiting, but helped him fix the sink. He also said that a babysitter stayed with Sharice when he went to work at about 2:45. Wanda called him at work to say that she was taking all the children shopping; again to say that Sharice was not well; and a third time to say that Sharice had no pulse.
Park Forest South police officer Kevin Woods answered Wanda's call and found Sharice unconscious. Since she had no vital signs, he performed cardiopulmonary resuscitation (CPR). Then Allen Mannel, the ambulance driver, arrived. Wanda informed him that Sharice had been sick for at least two days, and that she had last seen Sharice after her bath an hour earlier. After an endotrachael tube was inserted, Sharice still had no vital signs, and so the paramedics transferred her by ambulance to the hospital, where the defendant informed Mannel that Sharice fell into the crawlspace three days ago.
Dr. Ira Asher, the emergency room physician, examined Sharice and found she was not breathing and had no heartbeat. He inserted a tube into her windpipe and started two IV's. He noted bruises on her forehead, arms, legs and sides and abrasions on her buttocks. He opined that the large bruises resulted from bleeding from the muscles through the tissues, and except for the forehead bruise, did not result from one fall. He found no fractures or infection. He opined that the bruises were between one hour and four days old and that the neck bruises could have resulted from neck pressures or intubation. Vomiting has numerous causes, including fatally bruised brain or a head blow, which can also cause momentary dizziness, unconsciousness and walking difficulty. Strangling or grasping the neck can restrict the blood flow and cause swelling and hemorrhaging.
Later, Officer Woods returned to the hospital to inform the Kellys that his department was investigating Sharice's death. At the station, the emotional defendant told Officer Michael Flowers that he felt guilty because he left the lid off the crawlspace after he worked on the plumbing. On Sunday, Sharice's legs hurt from falling into the crawlspace. On Monday, she was vomiting, and stayed home from school. That day, he placed an elastic bandage on her swollen arm.
In the early morning of November 23, 1983, Officer Ronald Baumgartner accompanied White to the Kelly residence to take protective custody of Lagresha and Nancy for foster home placement. While at the residence, the Kellys explained that the victim's excessively hard play habits may have caused the bruises. The defendant cried and showed White and Baumgartner the open crawlspace. The defendant also told White that the victim fell out of bed the day before. He once struck the victim, but since the children were abused by their natural mother, he did not believe in hitting them.
Officer James Funches arrested the defendant on November 25, 1983, and read the Miranda rights to the defendant, who cried and proclaimed his innocence. Funches allowed the defendant to use the phone. The defendant, however, did not recall that his rights were read to him. The defendant was taken to a Chicago police station, where he and his wife were allowed to make calls. Wanda tried to call an attorney. At another Chicago facility, the defendant spoke with attorney Ellston, who told him to keep quiet. The defendant thought that the attorney informed the Park Forest South police that they had an attorney. The defendant hugged Officer Robert Coleman and volunteered that he did not kill the victim.
After the defendant arrived at the Park Forest South Station, Officer Baumgartner read the defendant his Miranda rights. The defendant indicated his understanding and stated his willingness to speak without an attorney. The defendant then signed the rights waiver. The defendant never asked to call an attorney, but was emotionally and physically upset during the interview. The defendant never requested food, but was given coffee. The defendant told Coleman that he last disciplined Sharice on Saturday and that he had struck her with a belt and a stick. Coleman then overheard the defendant tell his mother that he spanked the victim on Sunday. The defendant also admitted that he fabricated the crawlspace story. The defendant was upset when Coleman, not knowing the truth, pointed out strangulation evidence in the pictures. Coleman also told the defendant that he knew Wanda strangled the victim. After tearing the written statement, the defendant reverted to the crawlspace story.
The defendant testified that he ws unsure if his rights were read to him. The defendant testified he told Coleman that he did not want to speak and that he wanted to and did call his attorney. However, Coleman wanted to speak with him as friends. Coleman showed the defendant the bloody belt that was used to beat Sharice, her panties, and a picture of a stick which he untruthfully represented as containing her flesh.
According to David Metzger, a forensic scientist, the blood type on the underwear retrieved from the Kelly residence matched the victim's blood type.
Dr. Hugo Romeu, a Cook County medical examiner and pathologist, noted during the autopsy that the child had neck abrasions and injuries on the back of the neck, buttocks, thighs and arms. The neck marks were consistent with fingernail marks and corresponded to internal strap muscle injuries. In his revised opinion, strangulation was a supervening, intervening cause of death. The doctor also noted that the child's linear buttock abrasions resulted from an intentional beating. The forehead, chin, and left forearm injuries could have resulted from a fall, but the neck injuries which were less than three days old were intentionally inflicted but not during CPR. The child had 48 external injuries, but no internal bleeding or organ damage. The child showed traces of hemorrhaging and brain swelling caused from strangulation. The neck injury could have resulted from neck grasping and throwing.
Dr. Edward Shalgos, a pathologist, reviewed the medical reports and photographs and noted hemorrhagic strains in the left skull and lesions on the buttocks and thighs. He opined that the victim died of progressive shock incidental to beating. The vomiting and mental fogging supported his conclusion. The neck lesions were caused by grasping her neck and contributed to her general trauma. Shock broadens the body capillaries, which become wide, thin and porous. The blood stagnates in the vessels and less blood circulates, accentuating anoxia or lack of oxygen. Fluids then pass unrestricted and attract water, and the blood protein pours through and attracts water in the spaces between the organs, yielding body organ edema. Eventually, the heart is deprived of oxygenated blood; heart failure supervenes; and pe techia or minute hemorrhages result from the open capillaries. Strangulation connotes asphyxial neck structure compression and tissue anoxia. The doctor compared the evidence of front and back neck manual handling, but eliminated strangulation as the cause of death due to the extensive traumatic injuries and the age of the neck hemorrhages as compared to the other lesions. The victim was severely traumatized and quite ill. Her demeanor, the nausea and the vomiting prior to death were typical of shock changes. The esophagus changes were consistent with vomiting and due to the cellular structure, in his opinion, were as old as the neck and buttock lesions. The neck lesions could have been caused by grasping and throwing three days before death, rather than from the persistent compression of strangling.
The defendant presented Damian Golis to verify that the defendant left work on November 22 because Sharice was not breathing. White then related that Lagresha told her that Sharice was watching television when she came home on Tuesday. Wanda came home about 4 p.m. and angrily picked Sharice off the kitchen floor and took her to the bedroom. ...